Not All Pirates are in the Caribbean

On November 14, 2017, Arthur Alfred II, Ezequiel Martinez, Jr., and Tova Laiter sued The Walt Disney Company in the District of Colorado, alleging copyright infringement, and claiming that the Pirates of the Caribbean franchise of films, video games, theme park attractions, merchandising, casino games, literature and other related items infringe their screenplay of the same name.  The focus of the Complaint is that the Captain Jack Sparrow character in the Disney productions is substantially similar to the character Davy Jones in their screenplay.

Plaintiffs claim that Jack Sparrow is “an expression of a uniquely new ‘pirate.'”  Interestingly, the “idea” of humorous pirates may have been the idea of the rides original designer, Marc Davis, who realizing actual pirates were not particularly glamorous, opted for a more whimsical and romanticized approach that was less threatening to younger audiences.  Moreover Johnny Depp has claimed that his portrayal of Jack Sparrow was his own invention, and almost got him fired.

The court will have to decide whether Jack Sparrow and Davy Jones are similar because they are embodiments of the same idea or because they share the same expression.

He Who Lives by the Suit, Dies by the Suit

CBS Broadcasting Inc. has sued photographer Jon Tannen for posting still images from the Gunsmoke episode “Dooley Surrenders,” first aired on March 8, 1958. On line posting of images from classic television is fairly common, leaving one to wonder whether there isn’t more to the story, and it turns out there is.  As CBS Broadcasting explains in Paragraph 1 of its Complaint: “Tannen hypocritically engaged in this act of infringement while simultaneously bring suit against Plaintiff’s sister company, CBS Interactive Inc., claiming it had violated his own copyright.”

Tannen sued CBS Interactive in February, claiming that the online division of CBS had used two of his photographs without permission to illustrate an article about high school football player Sofian Massoud.

Despite being created by statute (17 USC 107) the only thing certain about copyright fair use is that it not as broad as everyone thinks it is.  Grabbing pictures from Google image searches to make a point or make a joke is common, but not every such use is technically a “fair use.” Although the widespread use of images in this manner probably is broadening the definition of fair use.  The Tannen v. CBS v. Tannen situation is a reminder that not all online uses of images are fair uses, and more importantly, if you are going to complain about something, you better not be doing what you are complaining about.